Gacke v. Pork Xtra, LLC, 02-0417.

CourtUnited States State Supreme Court of Iowa
Citation684 N.W.2d 168
Docket NumberNo. 02-0417.,02-0417.
PartiesJoseph GACKE, and Linda Gacke, Appellees, v. PORK XTRA, L.L.C., Appellant.
Decision Date16 June 2004

684 N.W.2d 168

Joseph GACKE, and Linda Gacke, Appellees,
PORK XTRA, L.L.C., Appellant

No. 02-0417.

Supreme Court of Iowa.

June 16, 2004.

Rehearing Denied July 30, 2004.

684 N.W.2d 170
Michael J. Jacobsma of Klay, Veldhuizen, Bindner, De Jong & Jacobsma, P.L.C., Orange City, Robert Malloy of Malloy Law Firm, Goldfield, and Eldon McAfee of Beving, Swanson & Forrest, Des Moines, for appellant

Thomas W. Lipps of Peterson & Lipps, Algona, and Randall C. Wilson of the Iowa Civil Liberties Union Foundation, Des Moines, for appellees.

James A. Pugh of Morain, Burlingame & Pugh, West Des Moines, for amici curiae Iowa Farm Bureau Federation, Iowa Pork Producers Association, and Iowa Poultry Association, and Christina L. Gruenhagen, West Des Moines, for amicus curiae Iowa Farm Bureau Federation.

TERNUS, Justice.

The plaintiffs, Joseph Gacke and Linda Gacke, sued the defendant, Pork Xtra, L.L.C., claiming hog confinement facilities operated by Pork Xtra constituted a nuisance. At issue in this appeal is the constitutionality of Iowa Code section 657.11(2) (1999), which gives nuisance immunity to animal feeding operations. The district court ruled the statute effected an unconstitutional taking of private property without just compensation, relying on this court's decision in Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998). Denying the defendant the benefit of the statutory immunity, the trial court rendered judgment in favor of the plaintiffs

684 N.W.2d 171
for the diminished value of their real property and for their intangible, personal damages caused by the defendant's hog confinement operation. The court denied punitive damages

Both parties appeal. We hold that section 657.11(2) violates article I, section 18 of the Iowa Constitution to the extent it deprives property owners of a remedy for the taking of their property resulting from a nuisance created by an animal feeding operation. In addition, we conclude section 657.11(2), as applied under the circumstances of this case, constitutes an unreasonable exercise of the state's police power and therefore violates article I, section 1 of the Iowa Constitution. Although the district court correctly refused to apply the statutory immunity, we think the court erred in the admission of certain evidence. Therefore, we reverse the judgment entered in favor of the plaintiffs, and remand this case for retrial.

I. Background Facts and Proceedings.

The Gackes live across the road from two hog confinement buildings owned and operated by Pork Xtra, L.L.C., a family farm corporation. The confinement facilities were built in 1996 and sit approximately 1300 feet north of the plaintiffs' farmstead, where the plaintiffs have resided since 1974.

On June 13, 2000, the Gackes filed this law action, alleging that Pork Xtra's operation was a nuisance. The plaintiffs claimed the defendant's facilities had caused personal injury to them, including emotional distress, and had resulted in a decrease in the value of their property. They asked for a permanent injunction restraining the defendant from operating a nuisance, compensatory and punitive damages, and other equitable relief.

The defendant pled the immunity of section 657.11(2) as an affirmative defense. Judge John D. Ackerman granted the plaintiffs' motion to strike this defense, holding it resulted in a taking of the plaintiffs' property without just compensation in violation of the Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution. The case proceeded to trial before the court at which time Judge Dewie J. Gaul considered the plaintiffs' claim under the statutory and common law rules of nuisance.

In its ruling after trial, the district court found that the hog confinement facilities constituted a nuisance due to the frequent and significant noxious odors that emanated from the operation. The court determined that the value of the Gackes' property had been reduced by $50,000 because of this nuisance. It also concluded the plaintiffs should be awarded $46,500 to compensate them for their past inconvenience, emotional distress, and pain and suffering, but refused to award any future special damages. The trial court also believed the evidence was insufficient to support an award of punitive damages in view of the defendant's compliance with all statutory requirements for such a facility and Pork Xtra's valid economic reasons for locating the buildings on the site near the plaintiffs' home. In addition, the court denied injunctive relief, concluding the damage award fully compensated the plaintiffs. In a ruling on the plaintiffs' post-trial motion, the court ruled that should Pork Xtra not satisfy the money judgment, "the court's denial of injunctive relief shall be deemed to be without prejudice to a new action seeking such relief."

The defendant appealed and the Gackes filed a cross-appeal. Pork Xtra asks that we reverse the judgment rendered against it because there was insufficient evidence of a nuisance. Alternatively, it argues there was insufficient evidence to prove a loss of market value in the plaintiffs' property

684 N.W.2d 172
and this portion of the damage award should be reversed. The defendant also seeks a new trial on two grounds: (1) the district court erred in holding section 657.11(2) unconstitutional; and (2) the court erroneously admitted prejudicial hearsay evidence. Based on these errors, the defendant asks this court to reverse the trial court's judgment and remand for retrial. Finally, Pork Xtra asserts the trial court should not have entered its supplementary order leaving open the possibility of equitable relief in the future

The plaintiffs deny any error in the trial court's rulings and assert an alternative basis to uphold the district court's ruling that the statutory immunity was unavailable: section 657.11(2) is unconstitutional under the Inalienable Rights Clause found in article I, section 1 of the Iowa Constitution. The only issue raised on the Gackes' cross-appeal is their contention the trial court erred in failing to award future special damages.

II. Section 657.11(2) Nuisance Immunity as an Unconstitutional Taking.

The first matter we consider is the plaintiffs' successful challenge to the constitutionality of Iowa Code section 657.11(2), the statute giving nuisance immunity to the owners of animal feeding operations. This provision states in pertinent part:

An animal feeding operation, as defined in section 455B.161, shall not be found to be a public or private nuisance under this chapter or under principles of common law, and the animal feeding operation shall not be found to interfere with another person's comfortable use and enjoyment of the person's life or property under any other cause of action.

Iowa Code § 657.11(2). On the authority of our Bormann decision, the district court held this statute violated the Fifth Amendment to the United States Constitution and article I, section 18 of the Iowa Constitution. We review the district court's decision on this constitutional issue de novo. Home Builders Ass'n v. City of West Des Moines, 644 N.W.2d 339, 344 (Iowa 2002).

A. Applicability of Bormann. The parties dispute whether Bormann is controlling, so we turn to that issue first. In Bormann, we held the nuisance immunity provided in Iowa's agricultural land preservation statute, Iowa Code section 352.11(1)(a) (1993), was unconstitutional under the Takings Clause of the federal constitution and article I, section 18 of the Iowa Constitution. 584 N.W.2d at 321. In that case, the county board of supervisors had approved the application of several landowners to declare an agricultural area in the county. Id. at 311-12. This designation gave the applicants the benefit of the immunity provided in section 352.11(1)(a), which stated in part:

A farm or farm operation located in an agricultural area shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activities of the farm or farm operation.

Iowa Code § 352.11(1)(a) (1993). Neighbors of the applicants challenged the board's action in district court without success. Bormann, 584 N.W.2d at 312.

On appeal, we held section 352.11(1)(a) created "an easement in the property affected by the nuisance ... in favor of the applicants' land ... because the immunity allows the applicants to do acts on their own land which, were it not for the easement, would constitute a nuisance." Id. at 316. We concluded such "[e]asements are property interests subject to the just compensation requirements of the Fifth Amendment ... and [the Iowa] Constitution." Id. Therefore, we held, the Board's

684 N.W.2d 173
action triggering the nuisance immunity "amount[ed] to the taking of private property for public use without the payment of just compensation." Id. at 321.

Pork Xtra claims that Bormann is not controlling here because the statutory immunity at issue in this case is not as broad as that at issue in Bormann. The defendant points out that section 657.11(2) does not apply upon proof that

(1) The animal feeding operation unreasonably and for substantial periods of time interferes with the person's comfortable use and enjoyment of the person's life or property. [and]
(2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.

Iowa Code § 657.11(2)(b). Pork Xtra argues that the introduction of "the concept of reasonableness" indicates that section 657.11(2) is not a complete defense to nuisance actions and therefore is not subject to the same infirmities as the immunity found in the agricultural land preservation statute, section 352.11(1)(a). We do not agree that section 657.11(2) is distinguishable from section 352.11(1)(a) on this basis.

As we noted in Bormann, the nuisance immunity granted in section 352.11(1)(a) does not apply when the nuisance...

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